Raj Kumar vs State Of Rajasthan And Ors

The instant writ petition has been filed by petitioner challenging order dt.04.05.2012 passed by the District Collector, Jhunjhunu whereby claim of the petitioner to grant him compassionate appointment, has been rejected.

The petitioner has also prayed for a direction to consider him for compassionate appointment as per notification dt.10.06.2008 issued by the State Government whereby the Rules were amended to give compassionate appointment on the ground of dependent of a member of Armed Forces who died or was permanently incapacitated in War or any defence operations.

The brief facts of the case are that the father of the petitioner was a Soldier in Indian Army and he had participated in the year 1971 Indo-Pak War and he was assigned duties in operation called "Cactus Lily" (Eastern Theater).

The petitioner has pleaded that the father of the petitioner during the aforesaid operation, suffered serious injury and was wounded and as such on 20.07.1973 the father of the petitioner was medically boarded out with 70% disability attributable and aggravated by the Military service.

The petitioner has pleaded that Department of Personnel, Government of Rajasthan issued a notification dt.10.06.2008 whereby amendment was made in various service Rules and specifically Rule was inserted, whereby it was provided that posts upto pay scale number 9A may be filled by direct recruitment by appointing the persons on compassionate ground, if the dependent of a member of Armed Forces belonging to the State, who died or permanently incapacitated in War operations during the period from 01.01.1971 to 31.03.1999.

The petitioner has pleaded that his father was expired on 28.04.2008 and left behind three dependents and mother of the petitioner.

The petitioner has pleaded that he applied for appointment as class-IV on compassionate ground and the District Soldier Welfare Officer Chirawa, after scrutiny of all the documents forwarded the case of the petitioner's to the District Collector, Jhunjhunu.

The petitioner has pleaded that the District Collector, Jhunjhunu has rejected the application of the petitioner on the ground that the petitioner had not submitted certificate issued by the Medical Board of SMS Hospital, Jaipur. The petitioner is said to have approached the respondents by filing a representation but the same was not paid any heed and as such the present writ petition has been filed.

Learned counsel appearing for the petitioner submitted that insistence of the respondents to get certificate from the Medical Board of SMS Hospital, Jaipur was an arbitrary condition put forward while rejecting the claim of the petitioner. Counsel submitted that the State Government while issuing a notification dt.10.06.2008 and further issued circular dt.27.06.2008, made it clear that the dependent of a member of Armed Forces was required to apply through proper channel and accordingly the petitioner had applied before the District Soldier Welfare Officer, Chirawa and as such the District Collector could not have rejected the claim of the petitioner.

Counsel submitted that the impugned order makes a reference the letter of the Department of Personnel dt.09.04.2012. Counsel submitted that the said letter dt.09.04.2012 has been filed by the respondents as Annex-R-2 and the Department of Personnel has referred to notification dt.01.10.2002 with regard to appointment on compassionate ground and it has been averred that there is no power for relaxation of securing the disability certificate and in absence of such, no appointment can be given on compassionate ground.

Counsel for the petitioner submitted that the notification dt.07.02.2000 has been quoted by the respondents in their reply and note no.2 which has been appended in the said notification, makes it clear that the member of Armed Forces can also secure a certificate of his disability from the Competent Army Authority or from the Sub-area.

Counsel has submitted that considering the note which is provided by the Department of Personnel the notification dt.07.02.2000, the claim of the petitioner could not have been rejected as father of the petitioner was discharged on account of suffering injury during War operation and disabled to the tune of 70%.

Per contra, counsel appearing for the respondents submitted that the respondents have rightly issued the order, rejecting the claim of the petitioner. The petitioner failed to produce certificate from the Medical Board of SMS Hospital, Jaipur about disability of father of the petitioner and as such the respondents have not committed any illegality in passing the order.

This Court, deems it proper to reproduce the amendment which is made in the notification dt.10.06.2008 and the same is quoted hereunder:-

"(iii) after the existing clause (ii) of sub-rule (1), the following new clause (iii) shall be inserted, namely:-

(III) post up to pay scale number 9A to be filled in by direct recruitment by appointing on compassionate ground, one of the dependent of a member of Armed Forces belonging to the state, who died or was permanently incapacitated in war or any defence operations including counter insurgency operations and operations against terrorists during the period from 01.01.1971 to 31.03.1999."

I have heard counsel for both the parties and perused the material available on record.

This Court further deems it appropriate to quote the note no.2 which has been reproduced by the respondents in their reply and the same is quoted hereunder:-

टिप्पणी :2: स्थायी क्षति का निर्धारण स्थायी शारीरिक क्षति को मूल्यांकन करने वाले चिकित्सकों की निर्देशिका के अनुसार किया जायेगा (डी. जी. एच.एस. डब्ल्यू. एच.ओ.ए. एम.ए नई दिल्ली 1981) और सैन्य प्राधिकारियों द्वारा प्रमाणित और सहायक निदेशक, चिकित्सक सेवाए मुख्यालय 61(1) सब एरिया, जयपुर द्वारा ्रतिहस्ताक्षरित किया जायेगा या राजस्थान में के किसी आयुर्विज्ञान महाविद्यालय अस्थि विज्ञान के विभागाध्यक्ष शारीरिक औषध एवं पुर्नवास के विभागाध्यक्ष और न्याय संबंधी विज्ञान से विभागाध्यक्ष से मिलकर बने एक विकित्सा बोर्ड द्वारा प्रमाणित किया जाएगा।

This Court finds that the amendment for giving compassionate appointment to the dependent of a member of Armed Forces belonging to the State, was made by way of statutory amendment in various service Rules, 2008. The object was to offer appointment to the dependent of a member of Armed Forces who either died or was permanently incapacitated in War or any defence operations during the period from 01.01.1971 to 31.03.1999.

The undisputed fact in the present case is with regard to suffering permanent disability by father of the petitioner during War operation in the year 1971 and as such entitlement of the petitioner to get job on compassionate ground is made out as per amendment of Sate Government notification dt.10.06.2008.

This Court finds that the father of the petitioner had expired on 28.04.2008 and as such there was no question of getting any Medical Certificate about disability after death of the father of the petitioner from Medical Board of SMS Hospital, Jaipur.

This Court finds that the note which has been appended in a notification dt.07.02.2000 itself makes it clear that the persons who suffer from permanent disability, can get a certificate from the Army Authorities and the said certificate will be equally followed for the purpose of considering the persons for offering them appointment on compassionate ground.

This Court finds finds that the impugned order has been passed by the respondents only on account of not producing a certificate from Medical Board of SMS Hospital, Jaipur and same reason cannot be a valid reason to deny consideration of case of the petitioner for appointment.

This Court finds that if the petitioner had produced the certificate issued by the Competent Army Authority, the respondents were required to look into the said Medical Board proceedings certifying that the disability of the father of the petitioner was 70%.

This Court finds that the respondents have not acted fairly in considering the case of the petitioner for appointment on compassionate ground and as such the order dt.04.05.2012 is set aside.

This Court directs the respondents to consider the case of the petitioner for appointment on compassionate ground and the respondents would be free to consider the relevant documents which are possessed by the petitioner as the same have been issued by the Competent Army Authority about disability of the father of the petitioner at the time of his discharge from service. The respondents are expected to carry out exercise of considering the case of the petitioner in expeditious manner but in no case later than six weeks from the receipt of copy of this order.

Accordingly, the present writ petition is allowed.